[Congressional Record (Bound Edition), Volume 156 (2010), Part 8]
[Senate]
[Page 10557]
[From the U.S. Government Publishing Office, www.gpo.gov]


                   OBJECTION TO EXECUTIVE NOMINATIONS

  Mr. GRASSLEY. Madam President, pursuant to a public letter to 
Secretary Sebelius dated September 24, 2009, there is a pending 
objection to unanimous consent requests for the following nominees: Jim 
Esquea, nominated for HHS Assistant Secretary for Legislation, and 
Richard Sorian, nominated for HHS Assistant Secretary for Public 
Affairs. I ask unanimous consent that a public letter dated September 
24, 2009, be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                               September 24, 2009.
     Hon. Kathleen Sebelius,
     Secretary, Department of Health and Human Services, 
         Washington, DC.
       Dear Secretary Sebelius: America's 11 million seniors 
     enrolled in the Medicare Advantage program deserve to be 
     informed of any actions by the federal government that could 
     affect this program and its broad implications. Medicare 
     Advantage Plans and Prescription Drug Plans that provide 
     services through the Medicare program have a constitutional 
     right to provide information about these Medicare programs to 
     their customers. Therefore, I hope you can understand our 
     grave concern with the recent Centers for Medicare and 
     Medicaid Services directive barring all such providers from 
     any and all communications of this kind with America's 
     seniors. This gag order must be immediately lifted.
       As the Supreme Court has repeatedly recognized, our 
     constitutional tradition is one of ``a profound commitment to 
     the principle that debate on public issues should be 
     uninhibited, robust, and wide-open.'' Health plans, of 
     course, have the right to speak on matters of public 
     concern--a fundamental principle that your Department, until 
     recently, had recognized and respected. Specifically, the 
     Department of Health and Human Services (HHS) previously 
     noted that there was no legal authority to justify 
     prohibiting a health plan ``from informing its members of 
     proposed legislation and exhorting them to express their 
     opinions'' about it. In fact, HHS had previously determined 
     that shutting down communication of this sort ``would violate 
     basic freedom of speech and other constitutional rights of 
     the Medicare beneficiary as a citizen.''
       Now, the Obama administration has reversed this 
     longstanding HHS decision--in the midst of a critical debate 
     about the future of health care services in our country--to 
     shut down communication between private companies and 
     America's seniors on an issue that has a direct impact on 
     their health care. And your Department has done so by 
     imposing an industry-wide gag order without apparent 
     justification or basis in law and completely contradictory to 
     your past public guidance and the plain language and spirit 
     of the First Amendment, among the most sacred tenets of our 
     democracy.
       America's seniors and the health plans that serve them 
     deserve to have their free speech rights respected. Their 
     rights should not be subject to the whims of any 
     Administration, and the health plans that serve them should 
     not be threatened with punishment if they speak out on a 
     matter of public concern simply because the Administration 
     disagrees with their position.
       Until your Department rescinds its gag order and allows 
     seniors to receive information about matters before Congress, 
     we will not consent to time agreements on the confirmation of 
     any nominees to your Department or associated agencies.
       Thank you for your consideration of this matter of such 
     great importance to America's seniors.
           Signed,
     Mitch McConnell.
     Jon Kyl.
     Lamar Alexander.
     John Cornyn.
     Lisa Murkowski.
     John Thune.
     Michael B. Enzi.
     Chuck Grassley.

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